Burke v. THOMAS J. FISHER & COMPANY

• Decision Date: 17 February 1955
• Docket Number: Civ. A. No. 4134-51.
• Citation: 127 F. Supp. 1
• Parties: Anne BURKE et al., Plaintiffs, v. THOMAS J. FISHER & COMPANY, Inc., a corporation, et al., Defendants.
• Court: U.S. District Court — District of Columbia

127 F. Supp. 1

Anne BURKE et al., Plaintiffs, v. THOMAS J. FISHER & COMPANY, Inc., a corporation, et al., Defendants.

Civ. A. No. 4134-51.

United States District Court, District of Columbia.

December 22, 1953.

Judgment Affirmed February 17, 1955.

H. Max Ammerman, Washington, D. C., for plaintiffs.

Charles E. Ford, Dan Piver, Washington, D. C., for defendants Donovan.

Hamilton & Hamilton, Washington, D. C., for Thomas J. Fisher & Co.

Judgment Affirmed February 17, 1955. See 219 F.2d 767.

McLAUGHLIN, District Judge.

By contract, dated November 2, 1950, the defendants Leo and Catherine Donovan, owners of a certain parcel of unimproved realty situated in nearby Maryland, agreed to sell and the plaintiff Anne Burke, acting as a "straw" for the plaintiff, River Road Development Corporation, agreed to buy the said tract for a consideration of approximately $190,000. Execution of the contract of sale was brought about through the efforts of the defendant Thomas J. Fisher & Co., Inc., a duly licensed real estate broker authorized by the Donovans to sell the property under a commission arrangement.

The parties will be hereinafter referred to, where practicable, as seller, purchaser, and agent, respectively.

At the time of signing the contract the purchaser posted with the agent a deposit of $5,000 to be applied to the purchase price as finally determined by a survey of the tract of land. The contract provided that "Within 120 days from the date of acceptance * * * by the seller or as soon thereafter as a report on the title can be secured if promptly ordered and/or survey if required, the seller and purchaser are required and agree to make full settlement * * *".

Upon the expiration of this 120 day period, the seller through his attorney attempted to ascertain the intention of the purchaser to carry out its part of the contract. Several discussions ensued between counsel for the seller and counsel for the purchaser. On each occasion the purchaser sought additional time for compliance because of inability to procure the necessary financial means. The seller acquiesced in these requests but did so with reluctance. It appears that nothing definite was ever finally determined or concluded until the last conversation when the seller's attorney advised the purchaser's attorney that the seller was unwilling to wait any longer. Thereafter on May 25, 1951, the seller his attorney, an employee of the agent and another person went to the Title Company to make settlement. There they learned that the title search had not been completed. Later, on the same day, at the office of the surveyor they were advised by the surveyor that the survey had not been completed because no one had come forward to make the necessary financial arrangements.

The seller then declared the deposit forfeited and made demand from the agent for one-half thereof. Asserting it's position to be that of a mere stakeholder, the agent refused to honor the demand until shown that a proper tender of the deed had been made. On June 21, 1951, the seller sued the agent for the claimed one-half of the deposit in the local Municipal Court. The agent answered and moved to add the purchaser, Anne Burke, as a 3d party Defendant. In October 1951, Miss Burke's motion to stay the proceedings in the Municipal Court was granted and the present suit was then brought to issue.

The purchaser's complaint in this Court seeks damages for loss of bargain, return of the deposit and special damages allegedly caused by the seller for breach of contract. It is contended by the purchaser that forfeiture was premature on the ground that a physical and actual tender of a deed of conveyance was a prerequisite to any declaration of a forfeiture by...